[author]Liu Wei
[content]
The rights distribution of data product
Liu Wei
Associate Professor, Koguan School of Law, Shanghai Jiao Tong University
Abstract: The confirmation of data rights should take the object definition as the starting point and make the distinguish between data, data resources and data products, Based on the ontological content and economic properties of data products, the distribution of data rights should be discussed in the frame-work of intangible property rights. The current law has tools to regulate the use of information, but with limitations. The allocation on the rights of data products can offer a more comprehensive solution for balancing circulation and protection. This framework presents an innovative institutional model for commercialization of data products, without undermining the anti-unfair competition protection mechanism. It is essential to delineate a distribution strategy of rights that prioritizes the rights of data product producer.The right to hold data resources and the right to operate data products are not part of the rights of data product producer. The rights of data product producer can foster healthy competition within the data product market. In order to respect the contributions of data source, the instrumental rights shall be established for data source to reproduct, access and correct the corresponding data. The adoption of the voluntary registration model can avoid the difficulties and costs of substantive examination, and realize the functions of proving data property rights and ensuring the security of transactions.
Kev Words: Data Products; Rights Distribution; Producer of Data Products; Exclusive Rights；Voluntary Registration
1. Presentation of the issue
The allocation of data property rights is a fundamental legal issue in the construction of the data factor market, and no consensus has been reached among the policy and academic communities on specific ideas. Although article 127 of China's Civil Code provides in principle for the protection of data and network virtual property, it does not provide specific guidelines for the allocation of data property rights, and legislators believe that "further in-depth research on the attributes of the rights of data and network virtual property is needed". In judicial practice, unfair competition disputes related to the acquisition and utilization of data occur from time to time, reflecting the complexity of the distribution of commercial interests in the process of the development and utilization of data resources and the urgency of clarifying the relevant property rights rules, for example, can an enterprise prohibit other enterprises from capturing and utilizing the publicly available user comment data stored on its platform? Can an enterprise prohibit other enterprises from accessing and utilizing the tens of thousands of drug instructions included in its APP? What kind of rights does an enterprise enjoy over the data assets formed by its in-depth processing? Due to the absence of a data property rights system, the reasoning and conclusions of these unfair competition disputes are often controversial.
Established studies are clearly divided on whether and how to allocate rights to data, and the object of data empowerment remains ambiguous. Scholars who deny the allocation of rights emphasize the weak protection of data and the situational nature of data utilization, and advocate the protection of data rights and interests through anti-unfair competition law ("behavioral regulation theory"), such as Zhou Hanhua, who argues that China's laws have already provided a higher level of protection of corporate data than the rules of liability, and that data empowerment is of no practical significance, and will inevitably lead to anti-commons tragedy, hindering the utilization and sharing of data; Li Yang pointed out that Japan has chosen the anti-unfair competition protection mode for data rights and interests, and that the idea of right allocation cannot meet the inherent requirements of statutory nature and transparency of data rights. Among the arguments in favor of rights allocation, different scholars hold different ideas. Some commentators believe that data collections should be protected with reference to intellectual property protection mechanisms, but there are different views on what kind of rights acquisition model to hold and how the internal structure of data property rights should be organized. For example, Cui Guobin pointed out that "as a kind of intellectual property right, there is no theoretical obstacle to separate legislation for the right of exclusion of big data collection", and he prefers to configure the right of data collection in the framework of copyright law. Kong Xiangjun, on the other hand, believes that data rights and interests naturally have the gene of industrial property rights, and the protection of data rights and interests against unfair competition indicates that they have the essential characteristics of industrial property rights. Wu Handong believes that the basic power of data property rights can be summarized as the right to use and the right to disable, and that the empowerment of data property should adopt a binary right structure of data producer's right and data user's right. The mainstream viewpoints of the civil law academia do not agree with the idea of the right allocation of knowledge products. The commentators believe that the difference between data and intellectual property rights lies in the fact that the various rights and interests may be attributed to different subjects, and that data property rights should be configured with reference to the theory of separation of powers of rights in property. For example, Shen Weixing believes that according to the different sources and degrees of contribution of different subjects to the formation of data, the data originator should have data ownership and the data processor (data operator) should have a binary right structure of data utility; Zhang Xinbao advocates the establishment of data property rights as the third category of property rights with the right to life, alongside property rights and intellectual property rights. The Central Committee of the Communist Party of China and the State Council put forward the "Opinions on Building a Data-Based System and Better Utilizing the Role of Data Elements" (hereinafter referred to as the "Twenty Articles on Data") to explore the system of structural separation of data property rights, and to establish a data property rights system framework with the right to hold data resources, the right to process and use data, and the right to operate data products as a "three-rights separation", so as to shift from the notion of "ownership" to the perspective of a "bundle of rights" in order to understand the rights on the data resources; however, the fundamental issues of the object of the rights of the property rights of the data, the nature of the rights and other basic issues are yet to be discussed in further depth.
The common underlying problem faced by the above different ideas lies in the legitimacy of the allocation of rights, that is, what is the justification for empowering data and what is the rationale for the allocation of data property rights. The dominant view in legal economics is that there are high transaction, rent-seeking, and protection costs associated with the allocation of rights to intellectual property, and prominent judges of copyright law have stated even more bluntly that no one has ever been able to determine the boundaries of thought and expression, and no one will ever be able to do so. The cost of allocating rights to intangible property is roughly the same, as can be seen in the classic expression above, which is significantly higher and more difficult than that of tangible property. The ideal idea is to effectively reduce the cost of allocating rights by defining the nature of intangible property, the characterization of rights and the scope of the right of exclusion. Therefore, the first issue of data empowerment is to determine the object of rights allocation, that is, whether the object of data property rights is "data resources", "data", "data products", or other? This paper advocates the construction of the exclusive right system of data product producers, and at the same time sets corresponding rights for data sources. The paper first defines the data product as the object of the right, and determines the scientificity of choosing the intangible property right allocation idea from the ontology of the right and the economic effect; then analyzes the existing normative mode of the adjustment of the interests of the data product and the deficiency, and embodies the necessity of the allocation of the data property right and the advantage of the data property right; the paper then puts forward and argues for the allocation of the right with the right of the producer of the data product as the core, and designs the data property right system based on the structure of "right subject-right content-right restriction". It should be noted that Article 20 of Data proposes to promote the implementation of public data rights and authorization mechanism, to promote the establishment of enterprise data rights and authorization mechanism, and to establish a sound personal information data rights and authorization mechanism, the background of this paper is limited to the enterprise data rights and authorization mechanism, and the paper does not differentiate between it and the data property rights, data empowerment, rights configuration and other different expressions.
2. The nature and economic effects of data products
Defining the object of the right is the primary issue in the configuration of the right. In the long history of the literary property debate, there have been two ways of thinking about and dealing with intangible property: one focuses attention on the essential features and grounds for the protection of literary property, while the other is more concerned with the liberalism of exchange and circulation. The former focuses on the essential features of intangible property, while the latter focuses on the economic effects of empowerment. Inspired by this, the following analytical approach, which draws on semiotic and economic methods of analysis to help clearly define the object of data empowerment and thus identify ideas for the allocation of rights, is adopted below.
2.1 The nature of data products
Semiotics identifies the object of study from the dimensions of can mean、refer to and referent. Semiotics in the sense of "can mean" is the form of symbols, that is, the form of symbols (symbolic layer); "refer to" is the content of symbols, that is, the symbols can mean the thoughts and feelings conveyed (content layer); symbols structure also includes their representations and ways of meaning, a symbol can mean always represent a certain thing; symbols "refer to" and "can mean" may be unified in the research object(physical layer). The concepts of symbolic layer, content layer, physical layer and representational relationship are introduced because they can be used to identify the object of data empowerment, and thus the path of rights allocation and the manner in which rights are represented.
Semiotics identifies the object of study from the dimensions of signifier、signified and referent. Semiotics in the sense of "signifier" is the form of symbols, that is, the body of symbols (symbolic layer); "signified" is the content of symbols, that is, the symbols can mean the thoughts and feelings conveyed (content layer); symbols structure also includes their representations and ways of meaning, a signifier of a symbol always represent a certain thing; symbols "signified" and "signifier" may be unified in the specific object(physical layer). The concepts of symbolic layer, content layer, physical layer and representational relationship are introduced because they can be used to identify the object of data empowerment, and thus the path of rights allocation and the manner in which rights are represented.
The relationship between data and information constitutes a relationship of "signifier" and "sigified", but neither is the object of data property rights. Information is filtered out from data by the perceptual or rational tools of the actors, and it establishes a connection between things and the actors. In common sense, data belongs to the "symbolic layer" and information belongs to the "content layer", with data being "a record of information by electronic or other means". From the perspective of historical development, data and information have existed objectively in nature and society since ancient times, for example, ancient people used to interpret information content through oracle bones (data). The reason why data empowerment has become a fundamental proposition of the big data era is because of the development of big data analyzing technology and data factor market. Before entering the Big Data era, data processing and crawling technologies were not yet developed, and producers of data collections could recover their production costs by maintaining a leading position through market first-mover advantages. Today's development of big data-related technologies has led to the introduction of legal incentives to ensure that data producers recover their production costs. The value of big data is being amplified as quantitative analytics become the trend, while the Internet of Things and cloud computing accelerate the feedback loop between machine learning and big data. Through the analysis of massive, dynamic and diverse data, data products that meet specific needs are formed and used to analyze the characteristics of specific objects, predict the future, and assist in decision-making. The processing, exchange and other forms of value realization of data products urgently require institutional support for the output and circulation market of data products through the definition of property rights. Therefore, the object of data property rights is not data, not a simple collection of big data, nor is it a single piece of information, but a product of specific information content processed by using big data analysis technology on a collection of data, which can be used to solve a specific problem and meet a specific business need, and can be called a data product. The essential content of data products is information, and the scarcity of data products refers to the scarcity of the "signified" (information content) rather than the scarcity of the symbolic form (data or data collection), and the essence of the property rights of data products is the property rights of the information content, which should be adjusted under the legal framework of intangible property.
Legislators have adopted different models to regulate the utilization of the symbolic, content and physical layers. First of all, the current law basically chooses the mode of intangible property rights to regulate the content of information, with the goal of realizing legal control over the "content layer". For example, personal information, works, trade secrets and trademarks are a combination of "information" and "symbols", and policymakers are more concerned about the nature of information content. The different characteristics of these information contents determine the regulatory focus of different laws or systems. Personal information is a kind of information related to identified or identifiable natural persons, and the Personal Information Protection Law focuses on the collection and processing of personal information, aiming at realizing the control of the subject of information over his personal information; the regulations on the utilization of works in the Copyright Law and the provisions on trade secrets in the Anti-Unfair Competition Law have their own regulatory focus, but they all have in common that they focus on the qualities of information content and regulate the interest relationship between relevant subjects of interest arising from the use of information content. Secondly, the regulation of the "physical layer" under the current law basically chooses the model of tangible property rights, with the goal of realizing the factual control of the "physical layer", which is represented by the normative model of the traditional property law. The "thing" in traditional property law refers only to physical and tangible objects, and decision-makers, based on the theory of separation of ownership rights, enable different subjects of interest to realize the use of physical objects and give full play to the maximum utility of the particular object. As long as the law does not explicitly prohibit it, individuals can obtain possession and ownership of tangible objects in the manner permitted by law; in contrast, intangible property can only be entitled to property rights if the law explicitly provides for it, and the explicit granting of exclusionary rights is a typical model for regulating the use of intangible property. Thirdly, the above legal adjustments regarding the physical layer (embodied objects) and the content layer (disembodied objects) are not distinctly opposed and separate, and the legislator's adjustments to the utilization of the content layer usually need to draw on the characterization of the physical or symbolic layer. For example, trademark is a kind of information that can distinguish the source of goods or services, and the purpose of trademark legislation is to avoid the possibility of consumer confusion brought about by the use of trademarks, and thus to shift the share of trade and reduce the enthusiasm for investment. As the saying goes, "trademarks are not taboo", the fundamental reason why trademarks can be protected is because of the goodwill they carry, and this essential focus on the content layer determined the emergence of early trademark law (passing-off claims) and the emphasis on the use of trademarks in modern trademark law. However, with the widespread adoption of the trademark registration system in modern trademark law, policymakers have shifted some of the focus to trademarks as the "symbolic layer" and made trademarks the object of rights registration, which further defines the object of rights and enhances the efficiency of transactions. The norms at the content level are the essence and the purpose, and the norms at the symbol level are only the means to realize the specific purpose. Although the trademark transferee may hold several similar trademarks (symbols), the legislator can ensure the unity of goodwill (information content) by designing the rules of transfering similar trademarks together, instead of indulging in the free transfer of specific trademarks (symbols), so that it can be seen that the means serves the purpose.
Therefore, the essence of the object of data rights is an intangible information content, not "data" as a "symbolic layer", let alone all kinds of tangible material carriers carrying information content. Information content should be treated as intellectual property in the intangible property rights system, and only when there is a special need to regulate the "symbolic layer" of information content, it is necessary to solve the problem of the appearance of the property right of the information content through the introduction of a registration system and so on. Focusing on the nature of the object of the right can accurately determine the idea of the allocation of the right, that is, the data property right should be allocated back to the system of intangible property rights; and grasping the economic attributes of the object can further define the boundaries of the object, and realize the particularization of the object.
2.2 Economic attributes of data products
Information content has non-consumptive and non-competitive economic attributes, which are fundamental characteristics that distinguish it from tangible property. Although the core essence of property rights is to authorize the owner of an object to exclude others from the use of the object, the owner of a tangible object achieves exclusive control of the object through physical possession, and it is impossible for two people to achieve physical possession of the object at the same time, at which point the use of the object by a single person reduces the economic utility of the object. Intellectual property is different in that it can be shared at no or low cost, is not subject to overuse and overconsumption, is non-consumptive and non-rivalrous, and policymakers incentivize creation by granting exclusionary rights to producers of intellectual property. Information content is also a form of intangible property, and market failures can occur in the processing and production of information content by market agents if some form of incentive is not provided to the developers of information content, which can be shared and utilized by others at no cost.
Market failure is a key determinant of incentives (legal intervention) to intervene. In the analytical framework of the behavioral regulation model, the means factor (e.g., breaking through technological management measures), the effects factor (e.g., substantial substitution consequences), and the scarcity factor (referring to the economic value to the developer, not the zero-cost reproduction of a physical feature) of the content of the information accessed by others to utilize the information content are important factors in determining market failures, and thus in introducing legal interventions. Before the arrival of the big data era, the processing and production of data resources by market players was relatively limited, and the exchange market for data resources had not yet been formed on a large scale, and even when examined in the behavioral regulation model, the relevant anti-unfair competition disputes were rare, and the need to rectify the market failure through the confirmation of the right to data or anti-unfair competition regulation was not obvious. After the accelerated development of big data analysis technology and data factor market, the deep processing of data resources has become possible. The scarcity of information content is more important to the judgment of market failure, the scarcer the information content, the higher its exchangeable value, and the higher the demand for rights allocation. Based on specific needs, information content enters the process of economic exchange when it is made available for exclusive use by processing, constituting an economic and scarce good and forming a data product. "Processing" makes it possible to distinguish between data resources and data products, and the greater the scarcity of data products and the greater their importance to developers, the higher the damage to the development market from the uncompensated use of data products, leading to more serious market failures and a higher need for incentive reinforcement. When fragmented information is processed into data products and is available for trading, the producers and processors need to be incentivized through legal protection (including behavioral regulation as well as various types of rights and interests protection systems) for the production and trading of various data products. In contrast, raw data, or data resources in the broader sense of the word, are not scarce enough due to the lack of inputs for processing and production, and are a public resource that can be shared and utilized at no cost without undermining the mechanisms of production and without the need to be reinforced by relevant incentive mechanisms. It can be seen that data products are the object of the allocation of data property rights and the basic unit in the market for the exploitation and transfer of data. Similar to knowledge products, data products have high production costs but very low distribution costs, with almost zero scarcity in the sense of physical characteristics, and are susceptible to market failure due to free utilization by others. If no property rights are allocated to data products, developers and producers will invest more resources in preventing others from utilizing data products for free, and utilizers will compete to invest more resources in utilizing others' data products, which will not increase the supply of data products, but will only result in unnecessary losses. If the rights to data products can be established and defined, and enforcement mechanisms can be established to prevent free utilization, then positive incentives can be provided to all parties to engage in the development of data products and increase the total output of data products. By creating property rights as a legal right that encourages production, discourages theft, and reduces the costs of protecting products from theft, society has created an artificial scarcity of data products at the institutional level. Simply understood, data products are private goods that have been "appropriated" by private individuals from the public good, removed from their original state of public ownership and need to be privately titled, and after titling, data products as private goods are competitive. Therefore, a distinction must be made between data products as objects of rights and the information content of individual data, which is a private good developed on the basis of specific needs, and the information content of individual data, which is still in its natural state and can be interpreted by anyone in a certain way. The information content of individual data may also have economic value, but in the absence of high-quality processing based on specific needs, it is usually of limited value and is difficult to price in subsequent circulation markets; the information content of data products is also distinguished from big data datasets, which are merely raw materials for big data analysis, material to be used for machine-readable and analytical purposes. Whether individual data or big data sets, just in a natural state of public goods, is a broad sense of data resources, not the object of title. Therefore, based on the information nature and economic effects of data products, it should be a natural way to adopt the idea of exclusive rights for data products in the intangible property rights system.
3. Normative Models and Shortcomings of Benefit Adjustment for Data Products
Data products have been used as objects of licensing and trading in commercial practice, and the adjustment of the commercial utilization of data products under China's existing laws is not a gap. When data products constitute works or trade secrets, they can be protected accordingly in the protection of rights and interests law (trade secret provisions in the Copyright Law and the Anti-Unfair Competition Law); in addition, they can be protected through contractual binding mechanisms and behavioral regulation models. However, all of these regulatory models are insufficient, and the configuration of data property rights is necessary.
3.1 Shortcomings of existing models of interest protection
First, the copyright system is designed to provide incentives for the creation of original information content. The sources of information content in data products are very broad and diversified, and the addition of unstructured data makes data products different from traditional databases. Data products are not necessarily the crystallization of "ideas", nor are they the external "expression" of ideas, and the way in which information content is combined in a data product may not be minimally original. The "production and development" of a data product is usually not a literary "creation", but often implies a solution of some kind of practical function, in order to solve a certain problem and improve the efficiency of decision-making, and the information content of such information cannot be adjusted by copyright law.
Second, if the content of the information is secret and the developer has taken confidentiality measures, the content of the information can be protected by the trade secret system because of its economic value, so that it can maintain a competitive advantage in the marketplace. However, trade secret regimes are not always appropriate for the protection of data products. A data developer may wish to "drive flow" to a data product by taking advantage of the public status, and the trade secret system cannot provide protection for the data product at this time. Accordingly, the focus of legal protection for the developer of a data product is not on ensuring the secrecy of the content of the information, but rather on avoiding free exploitation by others at no or low cost. The protection of data products does not rely on confidentiality and secrecy elements to maintain the operator's competitive advantage, and there is no need to draw on the normative principles and specific forms of trade secret disabling behaviors; data products and trade secret protection systems have different initial protection purposes and should be designed with different rights content. A reasonable program of institutional provision should enable data product developers to choose in advance between different incentives, whether to rely on the incentive of secrecy or openness.
3.2 Inadequacy of contractual binding mechanisms
Transactions in data products with public characteristics can also be regulated through contractual mechanisms. Authoritative scholars of copyright law in the United States have advocated the protection of information content in dissemination by means of contractual constraints, arguing that copyright law is not a stable approach. This represents a popular view of regulating intangible property, and in Japan, the contractual mechanism was once used as the overarching rule for controlling the utilization of data, arguing that collections of data could in principle be used freely unless they fell within the scope of copyrights, trademarks, or other intellectual property rights. At a time when the production and development of data products was not yet on a large scale, it was "economical" to deal with sporadic transactions of data resources through contractual mechanisms. However, in the context of the booming development of big data analytics and the data factor market, the inadequacy of the relativity of the data product transaction contract is highlighted, as the counterparty to the transaction is unable to counteract the acquisition and utilization of data products by a third party, and there is a lack of incentives for the production of data products. The current frequent disputes over data access and utilization unfair competition reflect the demand of data product producers for the establishment of statutory data access and utilization rules. The history of this development from contractual mechanism to behavioral regulation model is the same as the history of the development of trade secret protection model, and the latter is moving from behavioral regulation model to rights protection model globally, and a page of historical research should be offset by a volume of logical analysis.
3.3 Shortcomings of the behavioral regulation model
A large number of data access and utilization disputes in China's practice are dealt with under the framework of Article 2 and Article 12(2)(4) of the Anti-Unfair Competition Law (these two provisions are known as the "Large General Provisions" and the "Small General Provisions" respectively), which provide a certain strength of legal protection for data products. These provisions provide a certain strength of legal protection for data products. However, the protection against unfair competition is highly situational in nature, and the ambiguity of the general provisions leads to the possibility that different courts may come to different conclusions with respect to the same conduct.
In addition, the Anti-Unfair Competition Law objectively has a certain effect of confirming the right of data, and the courts in China have already shown a tendency of rightisation in the adjudication of data access and use unfair competition cases. As of 3 November 2023, the author searched the database of " Chinalawinfo", "WK First" and " iphouse" with the keywords of "data + capture + unfair competition". Unfair competition" as the keyword to search the "the Court considers" part, respectively obtained 39, 50, 64 decision documents, remove only involves the jurisdiction of the objection and other procedural rulings and did not make a decision on the substantive issues of the documents, duplicated documents (the same case of the first and second instance documents, only counted once) , instruments jointly included in the three databases, and instruments that only mention keywords but have nothing to do with the substance, 36 valid samples remain, of which the proportion of court decisions constituting unfair competition is as high as 80.56 per cent. However, the behavioural regulation model is, after all, a liability rule, and there is an inherent deficiency in providing corroborative rules. The Anti-Unfair Competition Law lacks a mechanism to adjust the interests of data products in a comprehensive manner, and legislators are usually unlikely to stipulate the constituent elements and rights and interests of data products, set the protection period of data products, and stipulate the "limitations and exceptions" of the utilisation of data products in detail, which not only results in the cost of defining data products, but also the cost of retrieval of data products transactions, and the cost of the protection of data products. This not only leads to the cost of defining data products and the cost of retrieval and compliance of data product transactions being too high, but also fails to respond to the urgently needed problems such as the valorisation of data products (transactions and value realisation of data products) and the distribution of rights and interests among multiple subjects in complex utilisation scenarios, but also tends to ignore the value of the freedom of data circulation and competition, leading to excessive protectionism, and impeding the development and utilisation of data products because of their high scarcity. From an economic point of view, there is usually a value paradox in knowledge assets, where maximising their utility undermines their scarcity; and maximising their degree of scarcity. In turn, makes it difficult to develop and utilise their utility. Behavioural regulation model is unable to respond to the urgent need for rights based on the elementalisation of data products, nor can it overcome the value paradox between product scarcity and product development and utilisation, whereas the empowerment model of data products is more advantageous, and the allocation of rights to data products requires a more comprehensive scheme, which is able to provide a comprehensive solution in the areas of "object of the right - content of the right - limitation of the right". The rights allocation of data products needs a more comprehensive scheme, which can be considered in the analytical framework of property law of "object of rights - content of rights - limitation of rights", and logically define the attribution of rights and interests, and design the rules of licensing and transfer, so as to provide a more prospective (ex-ante) institutional arrangement for the commercialization of data products and the improvement of the market of data elements.
It can be seen that there is a limited gap in the protection of data products in the existing law, and this "gap" has long been known to policymakers. Thirty years ago, EU lawmakers created a special rights protection mechanism through the EU Database Protection Directive (hereinafter referred to as the "Directive"), aiming to provide relief to database producers in the database production process to pay the investment. However, the EU's legislative achievements cannot be directly emulated by China, as the scale of data product development and utilisation thirty years ago is not comparable to that of the Big Data era. Moreover, this special protection mechanism is too vague in terms of the definition of databases, the composition of unlawful exploitation and the requirements for proof, which is incompatible with the mixed and unstructured characteristics of big data. After nearly thirty years of practice, the Directive has suffered many challenges in European academic and policy circles, such as providing special protection for databases may impede the flow of data, and the cost of the system is too high. However, the Directive still operates effectively, and some abstract provisions have been strictly interpreted in practice (raising the protection threshold for databases) in order to mitigate these challenges, such as UEFA's fixture list, which was deemed not to satisfy the condition of "substantial investment" in the Directive and could not be protected by the Directive. In an age where the cost of processing data products is much higher than the cost of producing medium or small-scale databases, where the technology for disseminating data products is more advanced and cheaper, where the cost of defining data products and the scope of rights is essentially unchanged, and where the demand for, and the benefits of, incentivising the empowerment of data products are much higher, the allocation of rights under the Directive should not be limited to the cost of the data product. Therefore, the Directive's idea of rights allocation can provide inspiration for current policymakers, on the one hand, through the determination of the content of the right of exclusion to enhance the scarcity of data products, on the other hand, through the delineation of the scope of rights limitations to safeguard the public's use of data products, so as to resolve the paradox of the value of data products.
To sum up, the existing normative model of intangible property and the incentive needs of data products may not be a perfect match, and it is necessary to make a targeted rights allocation and exclude the information content already covered by the existing normative model as far as possible. For this reason, the data products discussed in this paper refer to publicly available information content that is processed and produced to meet specific needs, available via the Internet, and not original. The arrangement of property rights can effectively deal with the value paradox between scarcity and utility of data products, which will be discussed in detail below.
4. Ideas for the allocation of rights to data products
China's legislators listed "data information" as an object of intellectual property rights in Article 108(2) of the Draft General Principles of the Civil Law (First Review Draft), which was later deleted due to the controversy over its conceptual scope, scope of protection, attributes of rights, and content of rights and obligations. At that time, the legislative preparation was not yet sufficient, for example, there was no consensus on the theoretical understanding of what "data information" meant. However, this legislative idea is still worth exploring. From the viewpoint of the property rights process, the rights allocation of data products and knowledge products is comparable, and the idea of rights allocation centred on the right of exclusion should be adhered to.
4.1 Data product producer rights as the centre
Labour property theory can provide analytical tools for the justification of data product rights allocation. In the process of intellectual property titling, preemption has been transformed to encompass the idea that labour is the basis for explaining the legitimacy of the acquisition of private property, thus explaining the legitimacy of acquiring intangible property from the public domain and allocating rights to the latter. Thus, the empowerment of intellectual property begins with the public domain and has the same logic in the empowerment of data products. The original data in its natural state has the characteristics of a public product and can be circulated freely, and the developer's "labour" makes the data product a private product, completing the process of "pre-emption" from the public domain. For example, after desensitization and in-depth processing of enterprise electricity consumption data, data products covering enterprise electricity consumption behaviour, payment, level, trend, etc. can be formed, which can reduce the risk of information asymmetry and time cost when banks screen customers, and provide credit support for enterprises applying for credit business. Such data products have intangible and incorporeal physical attributes, and product developers cannot implement physical possession like possessors of corporeal objects, but can only achieve legal control of data products by investors through statutory means.
The utilitarian theory can also explain the process of titling data products. Utilitarianism often guides the development of various regulatory models, and the design of the order of exploitation of both tangible and intangible property is broadly utilitarian, expressed either in terms of "making the best use of what is available" or "promoting artistic and literary creation" or "product creation". The specific expressions are either "to make the best use of things" or "to promote artistic and literary creation" or "to produce products"; the differences are only in the logical starting point of the property rights of the two types of property and the forms of property utilisation, and so on. Some commentators have pointed out that both the conduct-regulation type and the property-rights (registration) type are systems in which remuneration is paid without the permission of the right holder, and that, unlike ownership, which is objectively limited to one person's possession and exploitation of a tangible object, intellectual property law regulates conduct that can be exploited by more than one person at the same time. This point of view is to observe the different modes of regulation from the difference in the form of exploitation. In fact, the essential difference between the two property rights process is more reflected in the difference in the starting point of the allocation of rights. The logic of intellectual property rights is to maximize the protection of the public domain by carefully delimiting the scope of exclusionary rights, whereas the separation of powers theory of property rights in tangible property is to maximize the utility of a particular tangible object, and the starting point is to make the best possible use of it, rather than to protect the public domain. The bundle of rights characterizing the content of intellectual property rights allows intellectual property rights to be constantly responsive to technological and market developments, thus ensuring that there is always a dynamic balance between the protection of exclusive rights and the public domain. For example, the content of the rights (bundle of rights) enjoyed by the copyright owner is enriched by technological and market developments, allowing for an appropriate balance between the public domain and copyright protection, and a more flexible and comprehensive mechanism for balancing interests. Intellectual property and data products are both essential information, and intellectual property and information privacy laws are more analogous in that they both regulate the flow of information and provide statutory control and access to information. Moreover, data products carry the value needs of interconnectivity and data sharing, and the content or property boundaries of data product rights allocation must be balanced with the value interests of such public domains, and the logic of intellectual property rights allocation is the same. In this regard, the allocation of rights for data products may change with the richness of the data product utilization market, the balance of interests between data protection and data utilization, and the proportion of rights defined costs and benefits. The scope of exclusive rights for data products is dynamic.
The application of labor property theory and utilitarianism theory indicates that there are analogies between the process of data product property rights and intellectual property. The allocation of data product rights can absorb the lessons of intellectual property，but it is not suitable to draw on the allocation of tangible property rights. The rights allocation model of tangible goods centers on the dual rights structure of data ownership and data usufructuary rights, aiming to achieve a balanced allocation of data property rights and interests between users and enterprises. This approach also relies on labor property theory, but fails to reveal the relationship between data products and the public domain, which is fundamentally different from the basic concepts of data sharing and public welfare. The empowerment of data products not only involves dealing with the relationship between users and enterprises, but also with the relationship between property rights protection and data circulation. Therefore, a suitable approach should be centered on exclusivity, allocating the rights of information content to the party who evaluates it higher - the data product maker, because "efficiency requires that every private item should be used and consumed by the party who evaluates it highest" (endowment effect). The law can reduce negotiation costs by clearly and simply allocating property rights, and the exclusive rights of individuals guide the use and consumption of private goods into voluntary transactions, thereby maximizing wealth through property protection and voluntary transactions. Beyond the exclusive scope of data property rights, market participants are allowed to freely develop and operate, exposing rights holders to competitive pressure in the development and application of data products. By carefully defining the scope of exclusive rights to ensure maximum public domain, this promotes data development and circulation, and brings competitive benefits to consumers. This exclusive rights centered allocation model has been adopted by the intellectual property system. According to Article 123 (2) of the Civil Code, intellectual property is an exclusive right enjoyed by the right holder in accordance with the law over the object. The so-called exclusive rights are not the active right of the rights holder to utilize the work themselves, but the negative exclusive right of the rights holder to prohibit others from using the work without permission. Exclusive rights are easily misunderstood as the right of the rights holder to actively utilize the work. This exclusive right is essentially achieved by recognizing individual achievements and giving rewards, thereby bringing about a larger range of personal autonomy, allowing individuals to decide how and by whom to use the creative result. The allocation of rights for data products should establish an exclusive rights centric approach.
Beyond the scope of exclusive rights, data product producers naturally have the right to hold and operate their data products. Legislators do not need to confirm this factual state at the legal level. This is an individual's "economic right" over their assets that existed before the existence of legal rights. Economic rights reflect an individual's ability to consume or exchange goods. The current research or policy on the allocation of rights still revolves around the idea of "maximizing the use of resources" or "separating power and function", rather than an exclusive approach of intangible things, which is not advisable. Article 14 of the Shanghai Data Regulations provides positive provisions for the three rights of market entities: "use", "processing", and "transaction", while Article 58 of the Shenzhen Special Economic Zone Data Regulations provides for three types of rights: "independent use", "acquisition of profits", and "disposal"; The Twenty Articles of Data propose the establishment of a data property rights system that separates the ownership rights of data resources, data processing and usage rights, and data product management rights. These three types of rights should be understood as having different objects, and "data resources", "data", and "data products" do not point to the same object. The legitimacy and specific path of rights allocation should be discussed separately based on different degrees of investment or contribution. In terms of the allocation of rights for data products, holding, licensing, operating, managing, transferring, destroying or removing, and receiving remuneration based on the use of data products are only the basic ways for property owners to realize the value of their products. They are based on the allocation of rights and do not need to be included as exclusive rights. For example, Article 10 (1) of the Copyright Law stipulates 17 personal and property rights (bundle of rights and benefits) of a work, and Article 2 (2) stipulates that the right holder may "license" a work and receive remuneration from it. Although legislators have not stipulated that "a work can be pledged" and remuneration can be obtained from it, it does not prevent the right holder from realizing the value of the work by pledging it. From an economic perspective, defining itself comes with costs, and decision-makers do not need to allocate rights to all aspects of commercializing data products, but only need to focus on the utilization behaviors that are most likely to cause market failure. Any right has its core "bundle of rights", so that if someone is not granted these bundles of rights, they cannot be called "everyone". These "bundles of rights" are the exclusive scope of data products and should not be defined from the perspective of "holding, operating, managing, and receiving".
4.2 The degree of property rights of data products
The theory of behavioral regulation is based on the argument that "allocating absolute rights on data will harm the flow of data", and essentially points to the degree of property rights of data products.
Firstly, we can review the lessons of intellectual property in the history of property rights. In this period of history, digital determinists are concerned that property rights will affect interconnectivity, emphasizing maximum interconnectivity and advocating for allowing maximum freedom for each node or user on the network. This argument essentially emphasizes the importance of balancing different interests in the process of empowering intellectual property or data products, that is, the degree of property rights, rather than rejecting property rights. In fact, the behavior regulation model plays a disguised role in confirming rights for new types of rights in practice. In the history of intellectual property empowerment, the acceleration of technological innovation and changes in market patterns have not become obstacles to intellectual property rights, but have instead become catalysts for increasing the intensity of intellectual property rights. When the development of technology and changes in market interests disrupt the old balance of interests, the typification and legalization of new behaviors become possible. The key point prompted by this is not to completely negate property rights, but to ensure a balance between incentives (scarcity) and restrictions (utility).
Secondly, the allocation of exclusive rights will not hinder data circulation and market competition. As a typical paradigm for the allocation of intangible property rights, the rights allocation model of knowledge products has not become an obstacle to the production and market competition of knowledge products. Analysts point out that "a property rights system with exclusivity norms as the core logic is a prerequisite for the effective circulation and market allocation of intellectual property rights.". The root cause of this effect lies in the individual autonomy and flexibility brought about by exclusivity. "The autonomy of creators means competition," "intellectual property ensures exclusivity in results, but these results compete with each other in the market." Through market competition, the licensing, transfer, management, and pricing of results are regulated, which further eliminates doubts that property rights models will hinder market competition. The above principles on property flexibility are sufficient to demonstrate that the personal autonomy brought about by the exclusivity of results will enhance market competition, without worrying about the obstacles of property law models to data circulation and competition. In fact, the traditional definition of property rights in English and American law follows the idea of "exclusivity". The core issue is not to deny this exclusivity model, but to scientifically establish the rights structure of data product producers. The so-called "to build an exclusivity norm that is sufficient to balance the free flow of data, the core issue is to delineate the boundaries of data property rights." If property rights protection is positioned as a weak rights protection mechanism, the protection intensity of the two protection modes can be substantially equivalent, and the hindering effect of data rights confirmation on data circulation should not be overestimated. By imitating the scientific design of the intellectual property system, an analytical framework of "rights subject rights object rights content rights restrictions" can be developed, and the property protection model can provide a more stable and comprehensive institutional structure.
Finally, the property rights protection of data products can be compatible with the anti-unfair competition protection mechanism. On the one hand, different incentive mechanisms should be allowed to coexist. Data product creators can choose multiple incentive mechanisms to compensate for their processing investment. For example, data product holders can gain market leading advantages through prior investment (incentive mechanisms for market preemptive benefits), without the need to provide additional incentives from a legal system in principle; He can also choose to take confidentiality measures to keep the information he develops confidential, thereby gaining a market leading advantage. For some exceptional cases, Articles 2 and 12 of the current Anti Unfair Competition Law can provide a certain degree of reward for such data investment activities, correcting market failures caused by acquisition and utilization behavior (such as hindering the display of data products or services, dampening the innovation enthusiasm of data investors). This is generally a supportive incentive mechanism, still aimed at restoring the self-discipline of the market. The allocation of rights for data products is a secondary incentive at the institutional level, which is a creative incentive mechanism and does not have exclusivity with supportive incentive mechanisms. On the other hand, the legal application under the two modes is not mutually exclusive. The anti-unfair competition protection of data products needs to be analyzed based on specific factors in each case, focusing on the "triple interests" (interests of operators, consumers, and competitive order). The logic of rights allocation in data products pursues clarity, and unless there is a statutory exemption, data product rights holders have the right to control others to carry out specific actions on the data product. The anti-unfair competition protection mechanism is a mechanism that provides supplementary protection for industrial property rights. It was originally intended to supplement the trademark and patent laws formulated shortly after the Industrial Revolution and aims to fill the gaps in early intellectual property legislation, regulate commercial activities that harm the goodwill of intellectual property owners and are condemned by mainstream business circles, but cannot be classified as' infringement 'in law and included in intellectual property law adjustments. It can be seen that the property rights protection mechanism of data products is compatible with the anti-unfair competition protection mechanism.
5. The Structure of Rights of Data Product Producers
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5.1 Voluntary registration mode
Information content and symbolic form are not completely separated, and the allocation of rights to information content requires the use of normative tools in symbolic form. On the one hand, factual control over symbolic forms may be sufficient to achieve legal control over information content. For example, in an era where the utilization of works is not yet developed, the significance of distinguishing the information content and physical carriers in works is relatively limited. Controlling the possession and circulation of books can achieve the goal of controlling the utilization of works. However, as the information content in a work develops through market utilization, the regulation of the work content must be independent of the possession and circulation of books, and conflicts between the two need to be resolved through the exhaustion of distribution rights rule. On the other hand, the regulation of information content must address the issue of external representation of its rights, thus requiring the use of symbolic forms for regulation. For example, the Patent Law and Trademark Law have solved the problem of external representation of technical solutions and commercial marks by introducing a registration system. Legislators of the Copyright Law have also put forward requirements for "fixability" or "expressiveness" of works, allowing ideas to be expressed on a certain medium, making it easier to define the scope of rights and overcome the problem of high boundary costs. The perspective of economics is more straightforward in pointing out the relationship between information and carriers: once information has been transferred from an individual's brain to files or material objects, it gains its own life and can quickly and widely spread. On the contrary, if information is not encoded, it cannot be disseminated or traded. Therefore, legal and economic scholars believe that "an efficient property rights system may be a hybrid system that combines paper rights and possessive rights.".
Therefore, it is extremely important to determine the representation of rights in data products. The transaction of data products has already actually occurred, and the actual representation of data products (such as specific management measures taken by the rights holder) is accepted by both parties to the transaction. Although property rights registration has become the ultimate substitute for property rights transactions, data property rights registration may not necessarily be an inevitable form of data product transactions. At least from the current active over-the-counter transactions, it can be seen that the lack of data property rights registration system has not hindered the development of data product transactions. Therefore, discussing the functions of registration mode in data product trading and protection, as well as the specific implementation methods of registration mode, becomes a prerequisite for demonstrating the introduction of registration mode.
Firstly, the introduction of registration models is necessary. From the evolution of intellectual property law, it can be seen that one key point distinguishing between premodern intellectual property law and modern intellectual property law is the function of registration. Premodern intellectual property law gives judges and lawyers the trust to evaluate and pronounce judgments on protected objects, in order to exclude those trivial or unprotected objects. Modern law increasingly relies on the expression of the protected object rather than the object itself. With increasing concerns about judgment and widespread registration systems, there is a shift towards the closure of intellectual property. The selection of representation methods for data product rights should fully consider the economic basis of this historical evolution. Registration reduces the cost of defining data products, transaction costs, and protection costs, and can prove the existence and boundaries of data property rights. In a certain sense, registration is the legal definition. The competition in the market for data product development and utilization is high, and unfair competition disputes arising from data acquisition and utilization are frequent. As mentioned earlier, the plaintiff (holder of data rights) has a winning rate of 80.56%, indicating that there is a significant legal risk in obtaining and utilizing data from others. The introduction of a registration system can provide convenience for others to utilize prior data products. Developers can retrieve existing data products before developing data products, reducing legal risks associated with data development and utilization. Registration before data product transactions can prevent defects and fraud in advance, stabilize transaction expectations, and ensure transaction security. In summary, the registration of data products has the function of proving data property rights, reducing development risks, and ensuring transaction security. In this sense, voluntary registration and formal review models are adopted, and registration does not need to be a requirement for the change of data property rights. On the contrary, under the mandatory registration model, substantive examination is inevitably adopted in the process of data product rights confirmation, which is too difficult and costly. Moreover, frequent changes in registration items (such as the size and structure of data) inevitably lead to people's lack of confidence in the stability of rights.
Secondly, in addition to objective management measures and certification notarization, data products can also be customized through field descriptions, making the introduction of registration models feasible. At present, the field description method is basically adopted in practice. For example, the "Zhejiang Province Data Intellectual Property Registration Measures (Trial)" stipulate that applicants should record the following fields in the registration application form: the name of the data intellectual property, industry, application scenario, data source, structure scale, update frequency, algorithm rules, and certification and notarization situation; The registration items stipulated in the Beijing Measures for the Administration of Data Intellectual Property Registration (Trial) include: data set name, industry, application scenario, data source and data set formation time, structural scale, update frequency, algorithm rules, certification and notarization situation, sample data, registration object status, etc. The above two regulations have basically the same specific field content for data products, but the listing is too complicated to distinguish the functions of different fields. The registration of data products must record three items: the name of the data, the scale and structure of the data, and the application scenario. The field function of "data source" is to facilitate legality review, and the field function of "certificate storage and notarization" is to facilitate subsequent rights protection. These two recording items are not necessary for achieving the specificity of data products; Algorithm rules essentially belong to data structures. In the voluntary registration mode, "update frequency" is not a mandatory item to be recorded. Data product creators usually only apply for property registration based on transaction, compliance, or rights protection needs. Technically, they only need to solve the problem of data product specificity at the time of registration application, and do not require the rights holder to complete registration at any time. In addition, by strictly grasping the recognition conditions of data products, clear distinctions can be made between different data products. Only by making substantial changes to the original data products can new data products be formed, thereby encouraging rights holders and third parties to focus on deep processing of data products and register when there are substantial changes in the quantity and structure of data products, and there is no need to frequently file or change registration every time minor changes occur. Therefore, "update frequency" should not be a mandatory item to be recorded in the register. If the quantity and structural changes of data products are not substantial, the rights holder will still carry out transaction or rights protection actions based on the registered data property rights.
5.2 Ownership of data products
In the formation and operation process of data products, there may be multiple parties involved, and determining the exclusive rights of data products is essentially a matter of ownership of data products. Technically, it is necessary to distinguish the paths of different rights and interests. As a fundamental principle, a robust private property mechanism is to grant a core set of rights to a single entity, rather than to multiple entities. The author believes that only the creator of the data product needs to be granted exclusive rights, and the data source only has corresponding rights to the data elements they contribute.
Firstly, data products are different from personal information, as they do not point to specific natural persons and have already departed from personality traits. The ownership of data products cannot be determined based on "recognizability", and can only be determined based on labor contributions during the formation process of data products. Although individual data in data products may reflect the behavioral traces of natural persons, even directly derived from their writing or network access, the value of these individual data is very limited, and they may have objectively existed in the pre digital era, making a relatively weak contribution to the formation of data products. As pointed out by our country's court, "the economic value of a single online behavior trace information is very limited. In the absence of legal provisions or special contractual agreements, network users do not have independent property rights or property rights in this regard." The data source should not have rights to the data product. "User access" is similar to public materials in the process of creating works. Although public materials are "indispensable" to the formation of works, they have no relationship with the creation process of works and cannot determine the ownership of works. Similarly, the consumption data generated by consumers in the consumption process, the electricity consumption data generated by enterprises in the production and operation process, the social network data of users, and the medical data of patients during the medical treatment process have objectively existed in the pre digital era, but these data are in a static and divergent "natural state", It is the investment and innovation of data providers in algorithm technology and application scenarios that enable these "natural" data to be transformed into interrelated and commercially valuable data products.
Secondly, the key to the allocation of ownership of data products lies in clarifying their mechanism of equity formation, in order to determine which factors have fundamental decisive power over the formation of data products. The "attribution theory" in the theory of natural rights can serve as a criterion for judgment, meaning that a person possesses anything that their labor has "incorporated" or "incorporated" into. The production of data products has roughly gone through two stages: data collection (forming a data collection) and data analysis (forming a data product). Different data providers may have different types and degrees of investment, making work such as data collection, storage, transmission, cleaning, and analysis, which is known as "multiple entities participating in production". "Individuals, enterprises, society, countries, and other relevant entities have all contributed to the formation of data value", The legal narrative of attributing data to a single entity clearly deviates from the true rights on the data. In this context, it is necessary to distinguish the contributions of different labor inputs to different objects and determine the rights and interests separately. Various subjects (personal information subjects, copyright owners, trade secret rights holders, etc.) should claim rights to corresponding data objects at different levels. Data processors, etc. can become data property owners, submit corresponding data product registration applications, and enjoy the rights of data product producers within their contribution scope. The data source is not the creator of the data product and cannot claim rights over the data product. The emergence of the rights and interests of data sources is not based on production and processing labor, and does not have an exclusive nature. It is to ensure the opportunity for negotiation between data sources and data processors, and to grant them instrumental rights through institutional safeguards. These rights can be protected through administrative supervision and civil litigation. The data elements contributed by the data source are mostly raw data, and legislators can set the rights of access, copying, and correction for the data source to ensure the authenticity of the data and encourage people to actively participate in social and economic activities. It is not advisable to refer to personal information protection rules to set personal rights such as deletion or carrying rights for data sources (except when the data source becomes the subject of personal information). Article 2 (7) of Article 20 of the Data stipulates that "the data circulation and use model based on informed consent" and "the data source has the right to transfer corresponding data" are both unacceptable and fail to effectively distinguish the rights on data resources and data products. If informed consent, data transfer, and deletion rights are set for the data source, the free flow of data elements and the production and development of data products will be affected.
5.3 The content and limitations of the rights of data product creators
Another core task of data product rights configuration is to determine the content of exclusive rights. The content of exclusive rights is at least equally important as the definition of the object of rights, which is one of the lessons provided by the theory of tragedy of the commons and can directly reflect the degree of property rights. The specific approach to determining the content of exclusive rights can be based on the current types of unfair competition disputes in data products, observing the types of behaviors that cause the most serious damage to the data product development market. In this sense, the behavior regulation model objectively also has a certain effect on rights confirmation.
The main types of behaviors prohibited by the current anti unfair competition protection mechanism in our country reflect the data utilization market that is most in demand for data operators. Among the 36 effective case samples selected and determined by the author using the method mentioned earlier and the keywords "data+crawling+unfair competition", there were 30 cases involving data acquisition behavior (acquisition type), accounting for 83.33%; There are 28 cases (usage type) involving data usage behavior, accounting for 77.78%; There are only 4 cases involving processing behavior (processing type), accounting for 11.11%; There are 18 cases that include both acquisition and use; Four processing cases are accompanied by both acquisition and usage behaviors. The following analysis can be conducted on these data:
Firstly, all types of intellectual property cannot control others' access to intellectual products. This is to balance the interests between creation and contact. If the rights holder has the right to control others' access to intellectual property, it will inevitably hinder the creation of intellectual property. Similarly, data products themselves have the characteristic of being publicly available, allowing others to access them at zero cost. The property rights of data products should avoid reducing the benefits of data circulation and processing and should not empower property owners to control others' access to data products. Secondly, obtaining data products is the foundation for the subsequent use of data products. In China's judicial practice, there is a high proportion of cases of unfair competition disputes related to data acquisition, which reflects the necessity of regulating this behavior and can be regarded as a right of exclusivity for data products. Once again, market entities may "use", "publicly disseminate" or "process" data products after obtaining them, and different situations should be distinguished for analysis: ① The important purpose of property rights legislation is to prevent others from enjoying labor results for free, granting property owners control over the use of data products by others, which is crucial for property owners to maintain a competitive advantage. The form of "using" data products can include various situations such as the acquirer using, transferring, or licensing data products in their original form. Among them, "transfer" and "licensing" do not need to be exclusive rights, and "use in its original form" should be the main content of exclusive rights The public dissemination of data products should make it accessible to the public and be treated equally with the act of obtaining them. If it is not publicly disseminated, but only used for personal use or disclosed to specific individuals, it can be used as is or licensed for use without the need for independent legal authorization Processing behavior belongs to a form of using data products and should be considered as a reasonable usage scenario. In order to effectively distinguish between original use and processing use, processing use should make substantial changes to the original data product in terms of function and structure, otherwise it should still be recognized as original use. The positioning of processing behavior in this situation can be compared to the reasonable usage rules of the work. As a collection of original information, the copyright owner is still unable to control the transformative use of the work by others. Therefore, it is important to emphasize the importance of the work, and the owner of the data product should not have the right to control the processing behavior of the data product.
In summary, the content of the rights of data product creators can be defined as: obtaining, using, and publicly disseminating data products from others without permission and without a definite reason. The act of obtaining, using, and publicly disseminating data products from others constitutes an infringement of the rights of data product creators. Based on this, it is possible to further scientifically design a system for limiting rights and turn the rights of data product creators into a weak civil right.
6. Conclusion
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The cost of rights allocation for data products is relatively high compared to tangible property. By defining the essential content, appearance representation, and exclusive scope of data products, the cost of rights allocation for data products can be effectively reduced, and the scarcity and benefits of rights allocation for data products can be enhanced. The judicial practice in our country overly relies on the anti unfair competition protection mechanism of data products, which makes the empirical anti unfair competition protection of data products tend to be rightful. Behavioral regulation theory is too concerned about the blocking effect of data property rights on data circulation, which is not advisable. Allocating rights to data products within the framework of property law can enhance personal autonomy and market competition, provide clearer expectations for the commercial use of data products, balance data protection and data circulation interests more comprehensively, and remove institutional barriers for the realization of the value of data products.
The “Twenty Articles of Data” clearly define the goal of establishing an enterprise data authorization and rights confirmation mechanism, as well as the preliminary concept of "separation of three rights". It is necessary to further distinguish data, data resources, and data products, and discuss the allocation of rights for different objects, distinguish economic rights and legal rights, and ultimately complete the institutional construction of data property rights. The allocation of rights for data products should start from the essential attributes and economic effects of the data products, with the principle of safeguarding the public domain, and establish the idea of allocating data property rights within the framework of intangible property rights. Based on the processing and production of data product creators, the autonomy of the digital age should be achieved with the rights of data product creators as the core, while setting the content, protection period, and rights limitations of exclusive rights. In order to avoid excessive review costs, a voluntary registration system for data products should be introduced, without making registration a legal requirement for the change of data property rights. The function of registration as proof of data property rights and to ensure transaction security should be fully utilized. Data product creators can hold, operate, and manage data products, and obtain corresponding benefits based on holding, operating, and managing data products, without the need for legislators to set exclusive rights for this. To limit the degree of property rights of data products, the rights of data product creators should include three types of rights: acquisition, use, and public dissemination. In addition, the rights to copy, access, and correct corresponding data should be configured for data sources, in order to ensure that various entities receive corresponding returns for their contributions.
The original text was published in the Chinese Foreign Law Journal, 2023, Issue 6. Thanks for the authorization of the WeChat official account "Chinese Foreign Law Editorial Department" to reprint it!